An Interview with Richard A. Falk (Part 1)

The following is a chapter from the book Weapon of the Strong: Conversations on US State Terrorism by Cihan Aksan & Jon Bailes (Pluto Press).i

Richard A. Falk is professor emeritus of international law at Princeton University and an appointee to two United Nations positions on the Palestinian territories. He has authored, edited or contributed to 40 books, including The Great Terror War; The Costs of War: International Law, the UN, and World Order after Iraq; Achieving Human Rights; and International Law and the Third World: Reshaping Justice.

What do you understand by ‘hegemony’? Should the United States be categorised as a ‘hegemon’ or an ‘empire’?

Richard Falk: To be a hegemon is inherently ambiguous, usually implying some mixture of dominance and legitimacy, that is, being seen as contributing global leadership in a generally benevolent manner. As such the meaning of hegemony is subject to varying interpretations depending on how the historical role of the United States is interpreted. After the Second World War, facilitating the establishment of the UN and aiding the reconstruction of Europe, the United States was widely viewed, at least in the West, as a benevolent hegemon. In the non-West, the US was often perceived as a supporter of the colonial powers in their struggle to maintain control over their colonial possessions, and was viewed far more critically, especially by emerging elites that were more inclined to socialist development paradigms than to the capitalist ethos favoured by Washington. More recently the US has more accurately been viewed as a militarist ‘empire’ that fights destructive wars and intervenes in a variety of societies, especially in the Middle East to retain control over oil reserves, and lends crucial support to Israel that not only oppresses the Palestinian people but threatens to convert the entire region into a war zone. At present, the United States, with over 700 foreign military bases, navies in every ocean, a programme to militarise space, and drone bases planned for all regions of the world, is increasingly perceived in relation to its hard power diplomacy, a threat to political independence and stability for many countries. It is perhaps best viewed as an ‘authoritarian democracy’ within its own territory and as ‘a global state’ of a new kind when considered internationally.

Although the UN General Assembly passed a resolution entitled ‘Inadmissibility of the Policy of Hegemonism in International Relations’ in 1979 (which, incidentally, was opposed by the United States), international law has still repeatedly been used to legitimate hegemonic power. To what extent is international law intertwined with the geopolitical priorities and interests of the West? And, perhaps more importantly, is there any scope for turning international law into a counter-hegemonic tool of resistance?

RF: Throughout its history, from its modern origins in the seventeenth century, international law has served the interests of the powerful and wealthy, but also contained the potential to protect the weak and vulnerable. It is truly both a sword and a shield, and this double reality has persisted up until the present era. Historically, international law lent a measure of legality to the colonial system, and allowed the West to set the rules for participation as a sovereign state on a global level. It also protected the interests of foreign investment in countries of the global South even when these were exploitative, and deprived countries of the benefits of resources situated within their territories. At the same time, international law was also appropriated by counter-hegemonic forces to contend that existing international arrangements were immoral and needed to be supplanted by new legal rules and procedures. The struggle against the international slave trade resulted in an international treaty that made slave trading unlawful and eventually led to the international condemnation of slavery as an institution.

More recently, the idea of self-determination was gradually given credibility by international law, and it lent strong emancipatory support to movements of liberation struggling against a West-centric world order. Latin American countries used international law creatively, both to limit the protection of foreign investment by establishing the primacy of national sovereignty in relation to natural resources, and by building support for the norm on non-intervention in internal affairs. Recently, both Israel and the United States have mounted attacks on ‘lawfare’, that is, counter-hegemonic uses of international law to question policies associated with the occupation of Palestine and criminal tactics of warfare.

Human rights and international criminal law both illustrate the contradictory potential of international law. On one level, the imposition of human rights norms is a restraint on interventionary diplomacy, especially if coupled with respect for the legal norm of self-determination. But on another level, the protection of human rights creates a pretext for intervention as given approval by the UN Security Council in the form of the R2P (responsibility to protect) norm, as used in the 2011 Libyan intervention. The same applies with international criminal accountability. In the Goldstone Report, Israeli perpetrators of possible crimes against humanity were made subject to prosecution and punishment, although the geopolitical leverage of the United States within the UN prevents implementation. At the same time, several African leaders are being prosecuted for their crimes against humanity and participation in genocide: a double standard of sorts, given the impunity accorded to the West and Israel.

The UN Charter upholds ‘the principle of the sovereign equality of all its Members’.ii But how can this article be taken seriously when the Security Council, whose five permanent members are armed with the power of the veto, constitutes a collective hegemony?

RF: The issue of permanent membership and the veto is somewhat complicated. There was a deliberate decision after the failure of the League of Nations to make the next attempt to establish a global political actor sensitive to geopolitical realities. The underlying idea was to provide major states, defined in 1945 by reference to the winners in the Second World War (now an anachronism), with assurance that they could take part in the UN without jeopardising their national interests. In this regard, the UN has succeeded, as none of the big countries has withdrawn, and the Organisation has managed to achieve virtually universal membership of all sovereign states. Of course, during the Cold War this was a somewhat hollow victory as the two superpowers used their vetoes to block Security Council decisions that were opposed to their interests, and a demoralising gridlock resulted.

As matters now stand, the veto seems inappropriate, given the absence of any deep ideological split between major states, and definitely constrains the war-prevention mission of the UN. Similarly, the present permanent five are out of touch with geopolitical realities, and constitute a remnant of a West-centric world order, casting a shadow of illegitimacy across the activities of the most important organ of global policymaking in the UN System. To achieve effectiveness and legitimacy it is time to scrap the right of veto given to permanent members, or at least severely restrict its use. It is also time to either abandon the idea of permanent membership or broaden it to reflect the rise of non-Western states to the status of global leaders (e.g. Brazil, India, Indonesia, Turkey, South Africa), and to downgrade European representation by either giving the European Union a single seat or rotating a European state among Germany, France, UK, and Italy.

But is this achievable in reality? Would the Western powers ever consent to such an assault on their collective hegemony?

RF: Despite years of effort to make adjustments in the permanent membership, it has not been possible to reach a compromise. Most attempts have not challenged the over-representation of Europe, but have tried to find ways to add countries from the global South. Opposition has surfaced regionally, with Pakistan opposing India being given a permanent seat, and similar problems surfacing between Brazil and Argentina, and Nigeria and South Africa. Other historical issues have also arisen in relation to the claims of Japan and Germany to be treated in a manner equivalent to the United Kingdom and France. There are also concerns that addressing the representation problem by adding permanent members, especially if also granted the veto, would make the Security Council unwieldy, and not capable of reaching decisions in most conflict situations. Some suggestions have been made either to abandon the veto, or restrict its availability. Another proposal would deny the veto to new permanent members of the Security Council. So far no formula has been found that is able to generate the consensus needed to amend the UN Charter, which would be necessary, and can be blocked if any of the five current permanent members is opposed.

In the case concerning ‘the Military and Paramilitary Activities in and against Nicaragua’ (Nicaragua v. United States of America), the International Court of Justice (ICJ) found in favour of Nicaragua and ordered the United States to make reparations for all injuries caused. When the US refused to comply with the judgement of the ICJ, Nicaragua brought the matter to the Security Council, where it was duly vetoed by the United States. What is the relevance of the ICJ when its judgements have to be enforced by the Security Council?

RF: The experience in the Nicaragua litigation illustrates the pervasiveness of a geopolitical veto that is more extensive than the Security Council prerogative. As a party to the ICJ, the US had an obligation to uphold adverse judgements, but was able to shift implementation to the Security Council where its veto was available. This experience reveals the primacy of geopolitics in relation to international law and international institutional authority. If the geopolitical wind had been blowing in the same direction as the findings in the Nicaragua judgement, that is, if the decision had been supportive of the US position, then the United States would have been quick to seek sanctions in the Security Council to reinforce its claims under international law. It remains important, however, to appreciate that even though such counter-hegemonic applications of international law can be neutralised, they are still significant. There is an impact on world public opinion and civil society forces. In the Nicaragua context, despite repudiating the decision explicitly, the US Government complied de facto with the main finding, the unlawfulness of blockading Nicaragua’s ports. International law in its counter-hegemonic uses is very important in any domain where issues of legitimacy are significant, but is rarely able to have a corresponding behavioural impact. Similarly, the Goldstone Report establishes the credibility of the accusations directed at Israel with respect to its tactics used during the 2008–09 attacks on Gaza, but was not able to facilitate the next step that would have involved activating accountability mechanisms either within Israel or at the level of international society.

The legal scholar, Balakrishnan Rajagopal, claims that the international human rights movement has a ‘birth defect’ because it failed to mount a challenge to colonialism at the time.iii Indeed, many of the endorsing governments of the Universal Declaration of Human Rights (UDHR), which was adopted by the UN General Assembly in 1948, were European colonial powers, some of which exerted incredible pressure at the drafting stage of the document to block any reference to the right of self-determination. Has the international human rights movement outgrown its ‘birth defect’? Has it now developed a discourse that can also represent those countries and social movements which resist hegemony?

RF: I think the Rajagopal birth defect reflected the geopolitical realities that existed at the time the Universal Declaration was drafted and endorsed, in a manner parallel to the birth defect embedded in the overall constitutional structure of the UN, as most dramatically expressed by the operating procedures of the UN Security Council discussed above. It needs to be realised that a framework document such as the UDHR is a living legal organism that evolves over time, incorporating changes in the global climate of opinion. At the time, due to the concerns of the colonial powers the right of self-determination was not included among its provisions, yet by 1966 when the two human covenants were negotiated, the right of self-determination was elevated to the status of a common Article 1, and understood to be both inalienable and to inform the interpretation of all other rights. At the same time, the UDHR has some truly radical provisions that have been ignored, but remain authoritative if the political climate encourages their actualisation. For instance, Article 25 confers upon all persons the right to have a standard of living sufficient to meet the basic material needs of an individual and family. Article 28 goes even further, mandating the establishment of an international order that has the will and capacity to realise all other rights set forth in the Declaration. In passing it is worth noting that even in these idealistic provisions the UDHR was captive of the patriarchal language prevalent at the time, referring in Article 25, for instance, to the right of everyone ‘to a standard of living adequate for the health and well-being of himself and of his family’.iv It is inconceivable that such phrasing would be used if the UDHR were to be redrafted in 2012, as women have managed to change the normative atmosphere at least enough to render unacceptable discriminatory language of this sort.

There is another point to observe here. The UDHR has become an iconic document over the course of more than six decades, the starting point for discussions of whether or not the rights as set forth are truly universal or slanted to reflect the hegemony of Western values, especially those associated with liberal individualism. In 1948, when the majority of governments were actually in their domestic practices hostile to human rights, it was only possible to get approval for the Declaration because it was understood to be unenforceable! This feature of the process was underscored by calling the document a ‘declaration’ rather than a ‘statement of principles’ or a ‘treaty’ with obligatory implications. What led to the rise of human rights, and expressions of respect for the provisions of the UDHR, were three main developments: the activism of human rights NGOs that viewed UDHR as obligatory and were able to embarrass many governments in ways that induced unexpected degrees of compliance; the US ‘discovery’ of human rights during the Carter presidency in the late 1970s as part of an effort to restore America’s moral reputation after its humiliating experiences in the Vietnam War; and perhaps most important of all, the degree to which human rights allowed the global anti-apartheid campaign to become a political project that contributed to the collapse of the racist regime in South Africa.

Cihan Aksan and Jon Bailes are the founding editors of http://www.stateofnature.org. The following is a chapter from their book of interviews, Weapon of the Strong: Conversations on US State Terrorism (Pluto Press), available from 20th November, 2012. [1]